B-175239, APR 21, 1972

B-175239, APR 21, 1972

BID PROTEST - AMBIGUOUS SOLICITATION - UNTIMELY PROTEST DECISION DENYING THE PROTEST OF UNITRON ENGINEERING CO. AGAINST AWARD OF A CONTRACT TO PENN METAL FABRICATORS, INC., UNDER AN IFB ISSUED BY THE INTERNAL REVENUE SERVICE. PROTESTANT'S ALLEGATIONS CONCERNING AMBIGUITIES IN THE SPECIFICATIONS OF THE IFB WOULD MORE PROPERLY HAVE BEEN RAISED PRIOR TO BID OPENING. ACCORDINGLY, ITS PROTEST IS UNTIMELY AND MUST BE DENIED.

TO UNITRON ENGINEERING CO.:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 7, 1972, PROTESTING AGAINST THE AWARD OF ANY CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. 2914, ISSUED BY THE INTERNAL REVENUE SERVICE (IRS).

THE IFB WAS ISSUED DECEMBER 28, 1971, FOR THE PURCHASE OF INTEGRATED DATA RETRIEVAL SYSTEM (IDRS) WORK STATIONS, MODEL IA AND IV FOR DELIVERY TO IRS CENTERS THROUGHOUT THE UNITED STATES. BIDS WERE OPENED ON JANUARY 28, 1972, AND YOUR FIRM WAS THE SECOND LOW BIDDER. ON FEBRUARY 3, 1972, AN AWARD WAS MADE TO THE LOW BIDDER, PENN METAL FABRICATORS, INC.

THE RECORD EVIDENCES THAT ON FEBRUARY 3 AND 4, 1972, REPRESENTATIVES OF YOUR FIRM HAD TELEPHONE COMMUNICATIONS WITH REPRESENTATIVES OF IRS. ALTHOUGH WE RECOGNIZE THE EXISTENCE OF A FACTUAL CONFLICT BETWEEN YOUR POSITION AND THAT OF IRS AS TO WHETHER THE MATTERS BEFORE THIS OFFICE WERE MADE THE SUBJECT OF A PROTEST TO IRS ON FEBRUARY 3, 1972, WE FEEL THAT THIS CONFLICT IS, FOR THE REASONS STATED BELOW, IRRELEVANT TO THE PROPER DISPOSITION OF YOUR PROTEST.

THE BASIS FOR YOUR PROTEST TO THIS OFFICE, AS SET FORTH IN YOUR LETTER OF FEBRUARY 7, 1972, TO CHIEF, CONTRACT & PROCUREMENT SECTION, IRS, IS THAT THE SPECIFICATIONS CONTAIN CONFLICTS AND ERRORS WHICH WOULD PRECLUDE MANUFACTURING THE IDRS WORK STATIONS IN CONFORMANCE WITH BID REQUIREMENTS. IN SUPPORT OF THIS POSITION YOU DESCRIBE SEVERAL SPECIFICATION REQUIREMENTS WHICH YOU CONTEND ARE EITHER IMPOSSIBLE TO PERFORM, AMBIGUOUS, OR NOT REFLECTED IN THE DRAWINGS ACCOMPANYING THE IFB. FOR EXAMPLE, YOU CONTEND THAT THE REQUIREMENT FOR CERTAIN PARTS TO HAVE A SATIN FINISH, AND AT THE SAME TIME EVIDENCE NO BRUSH OR GRIND MARKS, IS IMPOSSIBLE.

YOU ALSO FEEL THAT THE PROVISIONS OF THE IFB ARE INCONSISTENT TO THE EXTENT THAT SECTION 4.1 OF THE IFB STATES THAT FUNDS ARE PRESENTLY AVAILABLE FOR ONLY A PORTION OF THE TOTAL QUANTITY REQUIRED UNDER SECTION 1.0, WHILE SECTION 9.0 STATES THAT THE GOVERNMENT WILL MAKE THE AWARD BASED ON THE LOWEST AGGREGATE PRICE FOR ALL ITEMS SET FORTH IN SECTION 1.0. IT IS YOUR POSITION, THEREFORE, THAT IN LIGHT OF THE LIMITATION OF FUNDS THE SUBJECT PROCUREMENT SHOULD BE ADVERTISED AS A REQUIREMENTS CONTRACT WITH MINIMUM INITIAL QUANTITY REQUIREMENTS.

WE ARE OF THE OPINION THAT THE APPROPRIATE TIME FOR A DETAILED EXAMINATION OF THE SPECIFICATIONS AND CONDITIONS OF AN IFB, AND THE CLARIFICATION OF ANY PROVISION THEREOF CONSIDERED TO BE AMBIGUOUS OR CONFUSING IS PRIOR TO THE OPENING OF BIDS. THE SUBMISSION OF A PROTEST AFTER BID OPENING, ON MATTERS THAT WOULD NORMALLY BE CLARIFIED DURING THE PERIOD WHEN BIDS WERE BEING PREPARED, TENDS TO CAUSE DOUBT AS TO THE PURPOSE AND VALIDITY OF A PROTEST. SEE B-162566, DECEMBER 13, 1967. THIS REGARD, THE SOLICITATION INSTRUCTIONS AND CONDITIONS, STANDARD FORM 33A, PARAGRAPHS 2(A) AND 3, ENCOURAGE BIDDERS TO NOTIFY THE PROCUREMENT AGENCY OF ANY PROBLEM IN UNDERSTANDING THE SOLICITATION, DRAWINGS OR SPECIFICATIONS BEFORE THE SUBMISSION OF BIDS. WE ARE ADVISED BY THE CONTRACTING OFFICER THAT PRIOR TO THE BID OPENING YOU HAD NO COMMUNICATION WITH THE AGENCY CONCERNING THE ADEQUACY OF ANY PORTION OF THE IFB. LIGHT OF THE ABOVE, WE CONSIDER YOUR PROTEST UNTIMELY. SEE B-172082, SEPTEMBER 2, 1971, AND SECTION 20.2 OF OUR BID PROTEST PROCEDURES AND STANDARDS, COPY ENCLOSED.

FOR THE FOREGOING REASON, YOUR PROTEST MUST BE DENIED.